Page images

two types of business we note here because they are bailees. The other public service businesses--the telegraph, the telephone, are not bailees, and belong to a subject treated elsewhere. The warehouseman has become largely subject to modern public utility laws, but as a bailee he is "ordinary" and subject to the rules heretofore discussed.

[ocr errors]

Sec. 10. INNKEEPERS. Innkeepers are those who make it their business to entertain travellers with board and lodging for hire.

An inn is a house which is held out to the public as a place where all transient persons who come will be received and entertained as guests for compensation.13 A lodging house is not an inn; nor is a restaurant.

The innkeeper must receive all who come, and who are willing to pay his reasonable charges, so long as his accommodations remain.

The innkeeper is held to an extraordinary responsibility; but the cases differ as to the extent. Under somie he is an insurer of the goods of the guest,14 except for loss by Act of God and the public enemy; but other views do not hold him to so onerous an undertaking; although in all cases he must use extreme care. Modern statutes permit him by notice given in a specified way to require the deposit of valuables with him for safe keeping in order to render him responsible. Under these statutes the guest may retain possession of the usual paraphernalia of a traveller.

13. Fay v. Pacific Improvement Co., 93 Cal. 253, 16 L. R. A. 188. 14. De Wolf v. Ford, 193 N. Y. 396, 86 N. E. 527, 21 L. R. A. N. S. 860; Gile v. Libby, 36 Barb. (N. Y.) 70.

The innkeeper has a lien upon the goods of his guest for his reasonable charges.15

Sec. 11. COMMON CARRIER DEFINED. A common carrier may be defined as a person who holds himself out to transport goods or persons or both, for hire, from one place to another.16

Carriers are of either private or public. A private carrier is a bailee whose rights and obligations are those of an ordinary bailee heretofore considered. If a carrier undertakes to serve those who come to hire him he is a public carrier, and the law imposes upon him the character of a public servant. Carriers as we know them today are generally incorporated companies; and besides being a public calling, which in itself imposes on them duties to deal indiscriminately with all who come, at reasonable prices, may have also important public franchises, as the right to lay tracks in the street and to exercise the power of eminent domain.

Carriers may undertake to carry goods or passengers, and may limit themselves to the carriage of classes of goods such as small packages. 16a

Sec. 12. COMMON CARRIER'S DUTY OF INDISCRIMINATE SERVICE. The common carrier must serve all who come for the kind of service that it purports to give.

A common carrier may limit itself to a certain territory, and a common carrier of goods may confine itself

15. Robins & Co. v. Gray, L. R. (1895) 2 Q. B. D. 501.

16. Dwight v. Brewster, i Pick. (Mass.) 50, 11 Amer. Dec. 133; Liverpool Steam Co. v. Phenix Co., 129 U. S. 397 at p. 440.

16a. This would not be true of a railroad or any carrier operating under a franchise requiring a general carriage business.

to certain classes of goods. But all customers are entitled to equal service so long as the facilities are not exhausted.17 Neither can it discriminate in rates. The Interstate Commerce Act with its amendments from time to time has been largely concerned with this question of enforcing indiscriminate service at reasonable rates.

Sec. 13. COMMON CARRIER'S DUTY TO TRANSPORT GOODS SAFELY. The rule of the common law was that the carrier of goods undertook an absolute duty to carry and deliver safely, unless harm befell by Act of God or the Public Enemy. The courts permitted a modification by special contract, but Federal legislation has restored the common law rule.

(1) The carrier liable as an insurer. It has been the law from early times that a carrier is an insurer of the safety of the goods entrusted to its care (with the exceptions hereinafter noted); that is to say that it has no defense that the loss was one not attributable to its negligence, or one which it could not have prevented by the exercise of every precaution.18 The reason for the rule was stated in the case cited as follows: “And this is a politic establishment, contrived by the policy of the law, for the safety of all persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves, etc., and yet doing it in such a clandestine manner as would not be possible to be discovered.” This rule has been main

17. Missouri Pac. R. Co. v. Larrabee Flour Mills Co., 211 U, S. 612.

18. Coggs v. Bernard, 2 Ld. Raymond, 909, I Smith's Leading Cases, 369.

tained to the present day and re-affirmed in recent federal legislation.

(2) The exceptions to the liability. The carrier is excused if the loss is caused by the following causes, each of which is defined and briefly commented upon:

(a) Act of God. An act of God is a violent eruption of nature, not caused by man's intervention and which could not be foreseen or guarded against. Hurricanes, unusual floods, earthquakes, lightning, landslides, have in them the elements of violence, surprise, lack of man's intervention, which make them "Acts of God.” 19 The carrier is not liable for loss so caused.

(6) Act of the public enemy. A public enemy was a force of sufficient organization and dignity to lay claim to political power, or pirates upon the high seas. A mob was not a public enemy,20 although authorities have excused loss caused by mobs when the carrier has taken every precaution.

(c) Loss caused by shipper's own act. This includes loss caused by improper crating, etc., and being attributable to the shipper, the carrier is not liable.

(d) Inherent defect or vice of thing shipped. The carrier must take such proper precautions to preserve goods which their nature demands, as refrigeration, watering of live stock, etc. But for loss not thus preventable arising out of the inherent defect or vice of the article itself, the carrier is not responsible.

(e) Loss by authority of law. If the goods are seized under legal process, or other authority of law, the carrier is excused.

(3) Limitation of liability. The carrier naturally attempted a limitation of this liability, and the courts al

19. New Brunswick Steamboat Co. v. Thiers, 4 Zabr. (N. J.) 697, 64 Am. Dec. 394. 20. Coggs v. Bernard, supra.

lowed this to be done by special contract. In England they were permitted to do so merely by posting notice of limitation, until legislation in 1854 required special contract. In this country, limitation by merely giving notice has generally been held insufficient, unless brought home to the shipper and assented to by him. In that event liability could be reduced to that caused by the carrier's own negligence which the carrier could not contract away.21

By federal legislation (Carmack Amendment, first and second Cummins Amendment) the common law liability of the carrier has been practically restored; and it has also been provided that the initial carrier shall be liable for loss or damage whether arising upon its own line or upon the lines of connecting carriers over which it has accepted shipment.

A much mooted point in regard to this question of liability arose in connection with a stipulation as to value. For instance, suppose a loss of automobiles shipped under an express receipt limiting liability to $50.00 unless a greater valuation was stipulated in the receipt. In some states it was denied that such a limitation was effective; but the United States courts upheld such a limitation even against the carrier's own negligence ; 22 and the Croninger case decided that the federal rule must prevail in all interstate shipments. By the first and second Cummins Amendments, the rule now is that the law prohibits all limitations upon the carrier's liability for full loss, damage or injury caused by it except when rates dependent upon the value declared in writing by the shipper, or agreed to in writing by the shipper as

21. Games v. Union Transportation Co., 28 Ohio St. 118.

22. Adams Express Co. v. Croninger, 226 U. S. 491; Pierce Co. v. Wells Fargo Co., 236 U. S. 278.

« PreviousContinue »